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The Fundraising Institute of Australia has warned that proposed changes to Australia’s Privacy Act will cause undue distress and confusion to the fundraising community, especially smaller charities.

The warning comes in an FIA submission to the Senate Legal and Constitutional Affairs Committee that is reviewing the proposed amendments to the Privacy Act.

The FIA says the major concern is around the term “prohibition” on direct marketing and opt-out requirements.

“Adequate privacy laws to protect donors' personal data are an essential component of charitable fundraising in this country. FIA basically supports the Privacy Amendment Bill under review believing that the proposed new Australian Privacy Principles (APP) achieve their stated aim of updating Australia's data protection regime,” the FIA submission says.

“We do, however, have major problems with two aspects of APP7. Specifically there is confusion around the prohibition on direct marketing and lack of clarity around the new requirement for opt-out in each direct marketing communication.

“FIA is also disappointed at the continuing uncertainty surrounding the Statutory Cause of Action for Serious Invasion of Privacy. Comment on this was sought in a discussion paper released late last year at a difficult time for the charitable sector because it coincided with a crucial period in the Not for Profit reform process.

“FIA asserts in the strongest possible terms that the statement, “Prohibition on direct marketing” which appears at the beginning of APP7 should be deleted as it is both unnecessary and unnecessarily confusing.

“Charitable fundraising depends on direct marketing techniques to raise the funds necessary to deliver services and provide succour to those in need.”

The FIA says that while it is advised there may be some technical legal reason for drafting APP7 this way, it flies in the face of common sense and will cause confusion and distress in the fundraising community, particularly among smaller charities.

Regarding an Opt-out requirement in each direct marketing communication the FIA says this is another example of uncertainty injected into the Australian Privacy Principles at the last minute when stakeholders thought such matters had been settled.

“Fundraisers use mail and telephony extensively for soliciting donations but are rapidly adopting email and digital channels. While there is no problem with providing opt-out details with mail, this is not the case with the new social media.

“FIA believes that there has not been sufficient consultation with this latest iteration of the APP7 and that it is not technology neutral. There is clearly a case for further amendment to ensure that the Principle will apply in all circumstances, with provisions for specific channels being worked out with the Privacy Commissioner in codes and/or guidelines to ensure technological neutrality.”

The FIA says that if the Bill becomes law in its current form, FIA anticipates considerable difficulty in advising members what they can and cannot do.

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I’m a professional fundraiser, and I am totally against a mandatory op-out option on direct mail. Example of why – When we do our direct mail appeals occasionally donors will call and ask to opt out of further mailings. Of course we comply with their wishes if asked, but when I get a cahnce to speak with donors in this situation I always ask the if they would like to recieve donor Newsletters, with communication about our programs, stories of clients, and about how donated funds are spent. Every single donor has said they do not want to miss out on receiving this – although it is in fact direct mail. A direct mail opt-out on direct mail material would seriously limit our options. We have funds to raise for very worthy causes and needy people, and the funds we raise take the strain off Government. We have to be able to use strategies to increase our donations and communication with donors by mail is the most ciritical part of it. We cannot afford to reduce this channel of fundraising in any way. If people wish to opt out, they can call of their own accord and their wishes will be abided by, but it gives us the opportunity to discuss and ascertain if they would still like to hear from us about other things.

As for the poster who said charities still send her things after she has asked to be taken off the list – I wonder if this is true? Another explanation for the receipt of masses of direct mail from charities is being on rented lists. Many charities rent lists from list-brokers for donor acquisition purposes. You may have got onto the lists due to entering competitions or filling out the Australian Household Survey, and not ‘unchecking’a particular box about receiving info relating to your expressed interests.

The requirement to offer an opt-out in each direct marketing communication only applies if the organisation did not collect individuals’ contact details from them directly or they would not reasonably expect their details to be used for direct marketing. This would apply, for instance, when charities share contact lists. There are also stricter controls around this practice, which is in line with community wishes.
When organisations contact individuals whose details they collected directly, APP 7 requires only that they offer a simple means of opting out of future marketing communications and do not charge individuals for opting out. There does not have to be an opt out notice in every communication in this case.